Citation NR: 9620430
Decision Date: 07/22/96 Archive Date: 08/02/96
DOCKET NO. 94-34 977 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to recognition as surviving spouse of the veteran
for purposes of Department of Veterans Affairs death
benefits.
REPRESENTATION
Appellant represented by: Jennifer H. Regas, Attorney
WITNESSES AT HEARING ON APPEAL
The appellant and the appellant’s daughter
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from January 1941 to August
1946. This is an appeal from an April 1993 decision by the
Department of Veterans Affairs (VA) Regional Office,
Cleveland, Ohio, that the appellant was not entitled to
recognition as surviving spouse of the veteran for purposes
of VA death benefits. It was held that she and the veteran
had not established a valid common-law marriage.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that she should be
entitled to recognition as surviving spouse of the veteran
for purposes of VA death benefits since she and the veteran
established a valid common-law marriage in 1955 and the
marriage continued in force until his death in June 1984.
They separated in 1962 due to the veteran’s misconduct.
There were no marriages prior to the marriage of the
appellant and veteran that acted as an impediment to their
common-law marriage. The appellant’s relationship with [redacted]
did not constitute a marriage. The veteran divorced [redacted]
and there is no proof of him having a legal marriage to
either [redacted] or [redacted].
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), has
reviewed and considered all of the evidence and material of
record in the veteran’s claims file. Based on its review of
the relevant evidence in this matter and for the following
reasons and bases, it is the decision of the Board that the
record supports the appellant’s claim for recognition as
surviving spouse of the veteran for purposes of VA death
benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant’s appeal has been obtained by
the regional office.
2. The appellant and veteran began residing together in the
State of Ohio in 1953; they separated in 1962 and remained
separated until the veteran died in June 1984.
3. The veteran had been married on several prior occasions,
to [redacted], [redacted] and [redacted]. The record reflects dissolution
of his marriage to [redacted] by divorce in July 1955.
4. The evidence does not indicate that the appellant and
veteran established a valid common-law marriage.
5. The appellant believed that she and the veteran had
established a valid common-law marriage.
CONCLUSION OF LAW
The appellant’s relationship with the veteran may be
considered a “deemed valid” common-law marriage; thus, she is
entitled to recognition as his surviving spouse for purposes
of VA death benefits. 38 U.S.C.A. §§ 101(3), 103(a), 5107
(West 1991); 38 C.F.R. §§ 3.1(j), 3.50(c), 3.52, 3.53 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that it has found the appellant’s claim to be
“well grounded” within the meaning of 38 U.S.C.A. § 5107(a).
That is, the Board finds that she has presented a claim which
is plausible. The Board is also satisfied that all relevant
facts have been properly developed.
I. Background
The record reflects that in a September 1946 claim for VA
benefits, the veteran indicated that he was single. He
stated that he had been married on two occasions. He
reported that he had been married in the spring of 1941 to
[redacted] and in 1943 to [redacted].
When the veteran was hospitalized by the VA during March
1963, it was indicated that his spouse was the appellant.
In an April 1963 statement, the veteran indicated that he was
married and had eight children. In an April 1963 income-net
worth and employment statement, he reported that he was
separated. In a marital status form completed in May 1963,
the veteran indicated that he was married by common law to
the appellant. He indicated that they had gotten married in
Cleveland in 1953. He reported that they had had eight
children born from 1954 to 1962. He noted that he had been
married twice and that he previously had been married to
[redacted].
There was submitted in May 1963 a copy of a divorce decree
reflecting the veteran’s divorce from [redacted] in July 1955.
A statement of marital relationship by the appellant, dated
in June 1963, reflected that she and the veteran began living
together in April 1953 in Cleveland. She stated that she
believed their living together made them legally married.
She indicated that she was aware that the State of Ohio
recognized common-law marriages.
The veteran indicated in a June 1963 statement that he had
been married to [redacted] and that she left him in 1941 and
just disappeared. He then married [redacted] and had had little
contact with her while he was stationed in Europe. He
indicated that on his return to the United States, he
attempted to contact her, but failed on all of his attempts.
He stated that he never did locate her.
The veteran indicated in December 1963 that at the inception
of his cohabitation with the appellant, they agreed to live
as husband and wife without the benefit of clergy. He stated
that they began living together in 1953 in Cleveland. He
stated that for the ensuing 10 years, the appellant never
lived with anyone else, although he had had other temporary
residences during that period of time. He indicated that
they had not entered into any business transactions together
or jointly executed any legal documents. He stated that the
appellant had left him and was supposedly living with her
mother. He indicated that the eight children resided with
him. He stated that their common-law relationship had ended.
In a VA hospital report dated in May 1964, the veteran’s next
of kin is listed as a friend.
A July 1964 court decree reflects that on the application of
the veteran and consent by the appellant, the mother of the
children, the eight children of the appellant and veteran
would hereafter be the children of the veteran as though born
in lawful wedlock as provided under the Ohio revised code.
A VA hospital report dated in March 1970 indicates that the
veteran’s next of kin was a cousin.
The veteran’s June 1984 death certificate indicates that he
had never been married. The informant was his son, [redacted].
In June 1992, the appellant submitted a claim for VA death
benefits as surviving spouse of the veteran. She indicated
that the veteran had been married twice, to [redacted] and to
her. She related that she had been married once, to the
veteran, in July 1955 and that the marriage had ended with
his death in June 1984. She indicated that she had not lived
continuously with the veteran from the date of their marriage
until the date of his death. She reported that she had not
returned home after he had abused two of her children that
were not his natural children. She indicated that she had
left in 1962 after giving birth to their last child. She
indicated that she took the baby and his stepchildren because
she could not stand any more of the abuse that was inflicted
upon them. She related that she also had health problems and
the veteran thought that her condition was contagious and did
not welcome her back.
An August 1989 statement by an official of Cuyahoga County
reflected that the veteran had initially applied for aid with
their office in October 1956. At this time he told the
office that he had been living in a common-law relationship
with the appellant since 1953, but had not been legally
divorced from his first wife, [redacted], until July 1955; it was
noted that the relationship could not be a common-law
marriage until after that date. It was indicated that the
appellant and veteran received aid from the county as husband
and wife until 1963, at which time the veteran had stated
that he and the appellant had been separated since 1962.
In a June 1992 statement, the appellant related that she and
the veteran had been living together since 1953 and were
considered husband and wife after his legal divorce from
[redacted] in 1958. She indicated that she had had two children
prior to meeting the veteran and he had fathered eight
children with her from 1954 to 1962. She indicated that the
veteran had been physically abusive to his stepchildren and
on many occasions had placed her through mental anguish and
distress. She indicated that in 1962, she had left the
veteran and resided with her mother.
A December 1989 statement by [redacted] and a June 1992
statement by [redacted] were to the combined effect
that the appellant and veteran had generally been known as
husband and wife and that they considered them to be husband
and wife.
During the course of a hearing at the regional office in
November 1994, the appellant related that she had resided
with [redacted] for 4 or 5 months in 1948, but did not consider
herself really married to him. She stated that they had
never agreed to be married, although the people around them
believed they were married. She indicated that she had begun
residing with the veteran in 1951 or 1952 and that they
considered themselves to be husband and wife. She related
that they lived together until 1962. She stated that others
around them thought of them as husband and wife. She
indicated that she had never married anyone following her
separation from the veteran. She stated that she had two
children prior to her relationship with the veteran.
The appellant’s daughter, [redacted], related that she considered
her mother and father to have been married. She indicated
that the other children recognized their relationship as
husband and wife. She indicated that her father had raised
the children beginning in 1966. She indicated that her
brother had indicated that his father had never been married
on the death certificate because some of the children had a
love/hate relationship with their mother.
The appellant submitted a November 1994 affidavit by [redacted]
indicating that, although he resided with the appellant in
1948, there was never a mutual agreement to marry and they
did not consider themselves as husband and wife. He stated
that they had not held themselves out as husband and wife in
the community in which they lived and were not regarded as
husband and wife in the community. He indicated that, in
fact, he had married another woman in 1950 and they remained
married until her death in August 1978.
II. Analysis
To be entitled to death benefits as a “surviving spouse” of a
veteran, the claimant must have been the veteran’s spouse at
the time of the veteran’s death and have lived continuously
with the veteran from the date of their marriage until the
date of the veteran’s death, except where there was a
separation due to the misconduct of, or procured by, the
veteran without the fault of the spouse. 38 U.S.C.A.
§ 101(3).
The term “surviving spouse” means a person of the opposite
sex who is a widow or widower provided the marriage meets the
requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(c).
“Marriage” means a marriage valid under the law of the place
where the parties resided at the time of marriage, or the law
of the place where the parties resided when the rights to
benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j).
Death benefits may be granted when the appellant, without
knowledge of any legal impediment, entered into a marriage
with the veteran which, but for the impediment, would have
been valid, and she thereafter cohabited with him for one
year or immediately before his death or for any period of
time if a child was born of the purported marriage or is born
of them before such marriage. Such a claimant is not
eligible, however, if a claim is filed by a legal surviving
spouse of the veteran who is found entitled to such benefits.
38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52.
In this particular case, the record indicates that the
appellant and veteran began residing together around 1953 in
the State of Ohio, a State that recognizes common-law
marriages which had their inception before October 10, 1991,
and that they resided together until 1962. Under Ohio law, a
mutual agreement of marriage in praesenti made by parties
competent to contract, accompanied and followed by
cohabitation as husband and wife, as a result of which the
parties are treated and reputed as husband and wife in the
community in which they reside, constitutes a common-law
marriage. Nestor v. Nestor, 472 N.E.2d 1091 (Ohio 1984);
Leibrock v. Leibrock, 107 N.E.2d (Ohio 1952).
In statements made in 1963, both the veteran and appellant
indicated that they had established a common-law marriage.
The record indicates that the appellant had had a prior
relationship with [redacted] for a period of several months in
1948 and that they had had two children; however, information
provided by both the appellant and [redacted] is to the effect
that they had not considered themselves to be married and not
held themselves out to the public as man and wife. However,
the record indicates that the veteran had had prior marriages
to [redacted], [redacted] and [redacted], and the record only establishes
termination of one of the marriages, to [redacted], by divorce in
July 1955. Thus, it does not appear that the veteran was
free to enter into a common-law marriage with the appellant.
Thus, the record is insufficient to establish a valid common-
law marriage between the appellant and veteran prior to the
veteran’s death in June 1984.
The record does not indicate, however, that the appellant was
aware of the veteran’s prior marriages to [redacted] and [redacted]
and apparently believed that she and the veteran had entered
into a valid common-law marriage following his divorce from
[redacted] in July 1955. Although the appellant and veteran
separated in 1962, the appellant has indicated that the
separation was a result of physical and mental abuse of
herself and the veteran’s stepchildren, and there is no
information to the contrary. The record therefore indicates
that the separation was due to the misconduct on the part of
the veteran and was not due to any fault on the part of the
appellant. There is nothing in the record showing that a
claim has been filed by a legal surviving spouse who has been
found entitled to gratuitous death benefits.
Accordingly, under the circumstances, the requirements for a
“deemed valid” common-law marriage between the appellant and
veteran have been met. 38 U.S.C.A. § 103; 38 C.F.R. § 3.52.
It follows that entitlement to recognition as surviving
spouse of the veteran for VA purposes is in order.
38 U.S.C.A. § 101; 38 C.F.R. § 3.50. In arriving at its
decision in this case, the Board has resolved all doubt in
favor of the appellant. 38 U.S.C.A. § 5107.
ORDER
Entitlement to recognition as surviving spouse of the veteran
for purposes of VA death benefits is established. The appeal
is granted.
HILARY L. GOODMAN
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991, amended by Supp. 1995), a decision of the Board of
Veterans' Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United States
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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